Central Administrative Tribunal - Delhi
Sat Pal (8742/Dap) Pis No.2890169 vs Government Of Nct Of Delhi on 20 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2340/2007 This the 20th day of December, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Sat Pal (8742/DAP) PIS No.28901690 S/o Jai Singh, R/o 54-B DDA Flats Phase-II, Katwaria Sarai, New Delhi-110016. Applicant ( By Shri Shyam Babu, Advocate ) Versus 1. Government of NCT of Delhi through its Chief Secretary, Players Building, IP Estate, New Delhi. 2. Joint commissioner of Police (Armed Police), Police Headquarters, IP Estate, New Delhi. 3. Deputy Commissioner of Police, 7th Bn, DAP, Delhi. Respondents ( By Mrs. Pratima Gupta, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Sat Pal, a constable in the Delhi Police, the applicant herein, sequel to a regular departmental enquiry that was conducted against him and his co-delinquents ASI Jugal Kishore, Const. Raj Singh and Const. Adesh Kumar, has been inflicted with the punishment of temporary forfeiture of service for a period of one year entailing proportionate reduction in his pay, vide orders dated 19.2.2007 passed by the disciplinary authority. It has also been ordered that the period spent by the applicant under suspension from 28.12.2005 to 15.2.2006 would be treated as not spent on duty for all intents and purposes. The appeal preferred by the applicant against the order aforesaid has since been dismissed by Joint Commissioner of Police, Armed Police, the appellate authority, vide orders dated 10.8.2007. These are the orders that have been challenged by the applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The facts of the case reveal that a joint departmental enquiry against the applicant and the persons mentioned above was ordered by DCP/Traffic (SR) vide order dated 8.2.2006. The summary of allegations, list of witnesses and list of documents were served upon the delinquents. The allegation made against the applicant and others was that while posted in Vasant Vihar Traffic Circle they were found indulging in malpractice like accepting illegal entry money from the driver of a delivery van without prosecution. It was the case of the department that on 22.12.2005 the PRG team comprising Inspr. Makhan Singh TI/PRG-T, Inspr. Anand Rai, Inspr. Sanjeev Tyagi and SI Anil Kumar ZO/PRG started moving in a private car arranged by Inspr. Makhan Singh in South District area and checked the traffic staff at various points discreetly. At about 3.30 p.m. when the PRG team reached in front of D-3 Vasant Kunj on Mehrauli-Mahipal Pur Road in the area of Vasant Vihar Traffic circle, it was observed that the traffic staff comprising one ZO and three constables were present there and a delivery van bearing registration number DL-1F-5353 was seen stopped by traffic staff there and one constable was also seen having some negotiations with the driver. Smelling suspicion, the PRG team positioned itself at a distance of 100 meters ahead of them towards Mahipal Pur and waited for the vehicle to be released by the traffic staff. After a short while, the traffic staff released the vehicle which approached near the PRG team and was stopped. The driver, namely, Satish, on enquiries revealed that his vehicle was signaled to stop by the uniformed traffic constable and was told that he had overloaded his vehicle, and demanded Rs.50/- from him, otherwise he might be prosecuted for Rs.100/-. The driver stated that the constable accepted Rs.50/- and allowed him to go, while two/three other police personnel were also present at a distance of four/five steps from him. The driver was brought back to the place where he was charged money without prosecution. The applicant and others named above were present there in uniform. The driver Satish identified the applicant as the traffic policeman who had stopped his vehicle and accepted Rs.50/- from him without prosecution. He, however, expressed his inability to identify other police personnel stating that he could not see their faces in hurry. The applicant was asked to hand over the illegal money taken by him from the driver, but he refused.
3. The department in its endeavour to bring home the allegations against the applicant and others, as mentioned above, examined Inspr. Makhan Singh as PW1. He deposed in tune with the allegations referred to above. He also stated that the statements of driver Satish and Inspr. Sanjeev Tyagi were recorded. He submitted his report along with DD entries etc. to ACP/Traffic, PRG on 23.12.2005, which was exhibited as EX.PW-1/A. In his cross examination he stated that he had not heard the negotiation between traffic staff and the delivery van driver, and that he had not seen the applicant taking Rs.50/- from the driver. HC Raj Kumar, examined as PW-2, produced copies of the posting record of the applicant and others named above, which was exhibited as Ex.PW-2/A. No cross examination was adverted to this witness. HC Subhash Chand, examined as PW-3, stated that he had produced the duty roster of the circle dated 22.12.2005 marked as Ex.PW-3/D and PW-3/E and original DD entries No.2, 11 and 17 dated 22.12.2005, exhibited as PW-3/A, 3/B and 3/C. No cross examination was adverted to this witness as well. Satish, the star witness of the department examined as PW-4, admitted the event on the date and time when he stated that on that day in the third week of December, 2005 at about 3.30 p.m. he was going in his delivery van from Mahipal Pur Road to Kishan Garh. He was carrying a rack in his delivery van, the height of which was up to the body. He was stopped by 3-4 traffic staff who were in uniform and they told that the height of the rack was in excess. He did not further support the case of the department, and rather stated that he told the traffic staff that the height was not in excess, on which they allowed him to go. He admitted that after going a short distance he was stopped by 3-4 civil cloth men who asked him why he was stopped by the traffic staff, but he did not further support the case of the department as he stated that he told them that the traffic staff asked about the excess height of the load and told that they were checking staff. He further stated that they wrote down something on a paper and obtained his signatures on it. He told them that he was illiterate, but they did not read over to him the writing on that paper. They asked him whether the traffic staff had demanded any money from him or had he paid money to them, to which he replied in negative. In the cross examination adverted to him, he stated that he would not be able to recognize the applicant as many days had gone by. To a specific question put to him whether the applicant was present there and demanded money, he replied in negative. To another question put to him as to whether the checking staff had got them identified also, his reply was negative. Inspector Sanjeev Tyagi, examined as PW-5 fully supported the case of the department. During cross examination, however, he stated that he had not heard the conversation between the applicant and Satish, and that he had not seen the applicant collecting money from Satish. On the basis of the evidence referred to above, the enquiry officer framed the charge which is almost the same as the allegations as referred to above.
4. The applicant and others were given chance to lead evidence in their defence. They availed the said opportunity and examined Sunil Kumar Yadav as DW-1. He stated that he was a taxi driver and that on 20.12.2005 the traffic staff was standing on D-3, Vasant Kunj Road. The taxi stand was at a distance of about 50 yards from the point where traffic staff was doing checking. From the taxi stand he noticed that a delivery van was stopped by the staff who kept standing there for two minutes and then he proceeded. After 10-15 minutes, 2-3 persons brought that delivery van driver to the traffic police staff. He also reached there. The persons who had brought the van driver to the spot were asking him whether he had given any money to the traffic policemen, to which the driver replied that he had not paid any money. Thereafter, they obtained signatures of the driver on a blank paper and then left. The applicant and others, after examining DW-1, submitted a joint defence, wherein primarily they stated that their defence was based on the deposition of the PWs and the DW, and in particular, the statement of PW-4 Satish. They also stated that the statement made by PW-1 Inspr. Makhan Singh and his report did not carry any weight in view of the deposition made by PW-4. The same was their defence as regards the deposition of PW-5 Inspr. Sanjeev Tyagi, and as regards PWs-2 and 3, they stated that they were formal witnesses. The enquiry officer, while briefly referring to the evidence led before him reached to the conclusion that the charge framed against the applicant and others stood proved.
5. The disciplinary authority in the impugned order dated 19.2.2007, after referring to the background of the case culminating into the findings recorded by the enquiry officer dated 25.8.2006, and while mentioning that there was tentative agreement as regards the findings returned by the enquiry officer, and that copy of the findings was served upon the defaulters, who had made written representations/submissions against the said findings, considered the pleas raised by the applicant and others, which indeed included that PW-4 Satish had not supported the case of the department, observed that in his statement to the enquiry officer, Inspr. Makhan Singh, PW-1, had stated that he had recorded the statement of Satish, and that he had seen his statement made before the raiding officer. In view of the evidence available on file and giving credence to the statement of the Inspectors, the disciplinary authority agreed with the finding of the enquiry officer. The appellate authority referred to the points raised by the applicant and observed as follows:
All the PWs have supported the prosecution story except Sh. Satish, PW-4, the driver of the delivery van, who has turned hostile during the DE from his earlier statement made before the raiding officer during PRG surveillance. Inspr. Makhan Singh has submitted detailed report on 23.12.05 that during surveillance of PRG team, the appellant was found indulging in malpractices like accepting illegal entry money from the driver of delivery van without prosecuting along with three other police persons in front of D-3, Vasant Kunj on Mahrauli-Mahipal Pur Road in the area of Vasant Vihar Traffic Circle. Although, Inspr. Makhan singh PW-1 and Inspr. Sanjiv Tyagi, PW-5 during their cross-examinations have denied to have prepared the identification memo and refusal memo etc. but their statements cannot be ruled out because they had seen the appellant having intercepted delivery van and some negotiations going on with driver Satish. Meanwhile, driver Satish was brought back to the spot where he was charged money without prosecution and has identified the appellant as the traffic policeman who has stopped his vehicle and accepted Rs.50/- from him in lieu of his release without prosecution. The appellant has refused to hand over the illegal money so accepted by him from the driver of van. The punishment awarded to him commensurate his misconduct.
6. Shri Shyam Babu, learned counsel representing the applicant, would contend that it is a case of no evidence; the Inspectors had neither heard the conversation between driver Satish and the applicant nor had seen the driver passing on money to the applicant, and insofar as driver Satish is concerned, he also stated that when he explained to the applicant and others that his vehicle was not overloaded, he was allowed to go and that no body had charged any money from him; there was thus, absolutely no evidence of demand and acceptance of bribe, and, therefore, there was no occasion either for the enquiry officer or the disciplinary and the appellate authorities to return a finding of guilt against the applicant.
7. Before we may proceed to comment and adjudicate upon the points raised by Shri Shyam Babu in support of the Application, as noted above, we may mention that it is only the applicant who has challenged the impugned orders. We are told during the course of arguments that others who were jointly tried with the applicant have not filed any court case in challenging the order of punishment inflicted upon them.
8. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
9. Presence of the applicant and others at the spot on the date and time of the incident is proved from the deposition of HC Raj Kumar, PW-2, who produced copies of the posting record of the applicant and others, as also from the deposition of HC Subhash Chand, PW-3, who produced the duty roster of the circle dated 22.12.2005. Even the applicant and others could not dispute their presence at the spot on the date and time of the incident. Inspr. Makhan Singh, PW-1, while fully supporting the case of the department, also stated that statements of driver Satish and Inspr. Sanjiv Tyagi were recorded. He had submitted his report along with DD entries etc. to ACP/Traffic, PRG on 23.12.2005. Inspr. Sanjiv Tyagi, PW-5, also fully supported the case of the department.
10. In the context of the facts as mentioned above, we proceed to determine as to whether the department led sufficient evidence to pin down the applicant with the allegations which were subject matter of charge. In the very first instance, we may mention that in a domestic enquiry, the strict rules of evidence under the Indian Evidence Act have no application and that all evidence which may have a logical probative value for a prudent mind are admissible evidence and that there is no allergy to admitting hearsay evidence at a domestic enquiry, provided it has reasonable nexus with the incident and is credible. The only caution is that one must be careful in evaluating such material and should not lead oneself into gullibly swallowing what is strictly speaking not relevant and admissible evidence under the Indian Evidence Act. This was so held by the Honble Supreme Court in State of Haryana v Ratan Singh [AIR 1977 SC 1512]. While referring to the said decision of the Honble Supreme Court, in a recent decision the Honble High Court of Delhi in WP(C) No.8127/2008 decided on 1.11.2010 in the matter of Ct. Arvind Kumar v Government of NCT of Delhi & others, has held as follows:
21. Thus, we may say that fair-play is the basis at a domestic inquiry and only bias or surrender or independence of judgment vitiates the conclusions reached. The simple point would be whether there is enough material where from a logical and a prudent mind, dealing with the probative weight of evidence, conclude one way or the other. The observations, as extracted above, came to be made in a judgment where the High Court was considering challenge to an order passed by this Tribunal in the OA filed by Const. Arvind Kumar, which was dismissed. The facts of no two cases may be exactly the same, but it appears to us that the facts of the case decided by the High Court, as mentioned above, and the one in hand, may be almost similar, of which we may make a mention. A charge memo came to be issued against Const. Arvind Kumar on 22.8.2005 in which the indictment alleged was that on 14.5.2005 he was posted at Vivek Vihar Traffic Circle and was detailed for duty at Surya Nagar red light point. A PRG team found him in plain clothes at 2:30 PM when he had stopped a half-body truck near the red light point, and was seen talking to the driver of the truck. After some conversation, the truck was let off. It was intercepted by Inspr. V. K. Kalia of the PRG team and upon enquiry, the driver named Rajveer Singh informed that the constable had stopped him and released him after receiving Rs.100/- as entry fee, and further that even on 13.5.2005 he had paid Rs.200/- to him at the same red light. He produced a note book on which Arvind Kumar had acknowledged having received the entry fee. He was taken back to the point where Arvind Kumar was standing and he correctly identified him. The indictment was that the aforementioned act of the petitioner Arvind Kumar in demanding and collecting Rs.200/- on 13.5.2005 and Rs.100/- on 14.5.2005 from driver Rajveer and having acknowledged receipt of the amounts on the note book of the driver was a grave misconduct inasmuch as, he had indulged in a corrupt practice and additionally, there was dereliction in the discharge of his official duties. Like in the present case, in that case as well, whereas the two Inspectors of PRG team had fully supported the case of the department, the driver let down the prosecution. He denied having ever paid any bribe to the constable either on 13.5.2005 or 14.5.2005. He denied that the constable ever acknowledged in the diary maintained by him of having received any bribe. He deposed that on 14.5.2005 he was bringing bricks into Delhi and near Karkardooma Courts two persons stopped him and made enquiries, and in the meantime at 3:45 PM constable Arvind Kumar came. The two persons who were policemen searched Arvind Kumar and recovered Rs.300/- which they returned to him and the other policeman took the diary of driver Rajveer and got its pages photocopied and thereafter returned the same to him. They also obtained his signatures on two papers, contents whereof he would not know. On cross examination, driver Rajveer denied that constable Arvind Kumar took any entry money from him either on 13th or 14th May, 2005, and that his alleged statement recorded on 14th May, 2005 was falsely recorded. The enquiry officer suggested to him that the petitioner had either won him over or intimidated him, both acts alleged to have been committed by the petitioner having been denied by him. The two Inspectors, when cross examined admitted neither having heard what transpired between the petitioner and Rajveer, nor having seen any money being paid by Rajveer to the petitioner. There may have been many points raised before the High Court, but insofar as the Tribunal is concerned, the point raised before it, as in the present case, was only that it was a case of no evidence. The Honble High Court even though, referred to other points as well, but mainly concentrated upon the submission made by the counsel for the petitioner before it that it was a case of no evidence. While evaluating the contentions as noted above, it was inter alia observed that the evidence could be divided into two parts. Part one would be what the Inspectors saw with their own eyes, i.e., direct and percipient evidence, and part two, what they claimed to have been told to them by the driver. The percipient evidence was the two police officers having seen the petitioner in plain clothes at the red light point and his having stopped the truck, and the petitioner and the driver of the truck talking to each other. Since the police officers were at a distance, they could obviously not hear the conversation. The Honble Division Bench observed that with reference to the gestures of the two persons and the movement of lips, a witness may be able to prove that two person spoke, and proof of two persons speaking need not be confused with proof of what was spoken about, and that it was true that the two police officers could not prove what was spoken about, but had certainly proved through direct evidence that the petitioner and the truck driver had a conversation. It was further observed that circumstances enwombing a fact play a very important role in appreciating the probative conclusions which can be inferred from a fact. The Bench illustrated, it is 1:00 PM, i.e., lunch time, and two friends are seen entering a restaurant; these facts are proved; a reasonable and probative inference drawn would be that the two have gone for a lunch. The example, it was observed, may be simple but would help to identify the process of reasoning needed to follow to determine in which side of the borderline a case would fall. While dealing with the testimony of the two Inspectors, it was also observed that their testimony would establish that the driver drove his truck into the city of Delhi and was carrying bricks as deposed by him; that the petitioner had stopped the truck; that the petitioner and the driver exchanged words; and that after some time the truck proceeded ahead. It was also observed that it was the job of the petitioner to ensure that law is obeyed and not broken pertaining to the movement of traffic from and at the spot where he was on duty, and that he had rendered no explanation as to why, after stopping the truck he permitted it to proceed ahead. On the basis of evidence led by the department, as broadly indicated above, it was observed, thus:
we are able to find sufficient evidence to establish that on 14th May 2005 the petitioner was posted on duty at Red Light Point of Ram Prastha Chowk and that he stopped a truck carrying bricks being driven into Delhi by PW-3 and after an exchange of dialogue the petitioner permitted the truck to be driven into Delhi; entry of trucks being prohibited in Delhi between 8:00 AM to 8:00 PM; the entry being permitted at 2:30 PM, there is enough material to establish that the petitioned acted for personal gain. While concluding the judgment, it was observed as follows:
30. The menace of bribe demanding and harassment at the hands of the traffic police in the city of Delhi is spoken of in evening discussions at parties etc. by the citizens of Delhi and of which we hear echoes in a Court of Law. Thus, though no submissions were urged on the proportionality of the penalty levied, we find the same to be adequate and reasonable. The conclusion arrived at by the Tribunal was concurred, but on the process of reasoning as given by the High Court.
11. Before we may proceed any further, we may mention that the only difference in the facts of the present case and the one decided by the High Court in Const. Arvind Kumar (supra) is that the driver of the truck was entering the city of Delhi at a time when it was prohibited. We may also mention that arguments in this case were heard on an earlier occasion when judgment was reserved. Vide order dated 16.4.2010, we had posed some questions to the learned counsel for parties which mainly pertained as to whether the statement of a hostile witness can be relied upon, and if so, to what extent, in departmental proceedings, as also as to whether when the police officers who had supported the prosecution version and had proved that statement of the van driver was recorded on the spot, when there was nothing on evidence to show that they were inimical to the delinquents, why their statements should not be believed, and further as to why the statement of the van driver to the extent that no money was demanded and paid by him be disbelieved and instead his recorded statement on the spot be preferred, the driver as witness having been won over by the delinquents. Despite these pertinent questions put to the learned counsel representing the parties, no arguments have been addressed on the issues as mentioned above.
12. The direct evidence in the present case of the two Inspectors mentioned above is that they had seen a vehicle stopped by the applicant and that there was a conversation between the applicant and the driver of the vehicle. The driver proceeded to leave, he was intercepted, was questioned and brought back to the spot where he was stopped by the applicant and others. There is absolutely no doubt about the direct evidence as mentioned above, as is not even the question. The driver admitted so. So much so, even the solitary witness produced in defence would also admit the same. Whether it be a criminal case or a departmental enquiry, the crime in a criminal case and the delinquency in departmental proceedings may not always depend upon the direct evidence. Circumstantial evidence also plays a pivotal role. It is not unknown that some times circumstances are so strong that they lead to only one hypothesis, i.e., the guilt of a person. It is often said that men may lie, but the circumstances dont. The traffic police would not make every vehicle to stop, as if that is to be done, there would be a complete chaos and traffic jam. It is often seen that drivers of vehicles are stopped only if there may arise suspicion in the mind of the traffic police that there is some infringement of traffic rules, which may include overloading as well. The driver of the van was indeed stopped and after some conversation was allowed to go. The PRG team had positioned itself at a distance from where they could see the event as mentioned above. They intercepted the vehicle and made enquiries from the driver. There was no question for the driver to be brought back at the spot had he not told the PRG team as claimed by it. Surely and definitely, if at that very time the driver of the van may have told as has been stated by him in his deposition when he appeared before the enquiry officer, the PRG team would not have brought him back to the spot to identify the applicant and others. This is a circumstance which would lead to the culpability of the applicant. The driver, as mentioned above, is not denying the event as such. He is making a variation from his statement signed by him. In these circumstances, a question arises as to why police officers of the rank of Inspector should in their testimony state what was not actually stated by the driver, and for which his statement was also recorded. There cannot be a presumption that simply because a witness belongs to the police department, he would tell lies. A witness from police department would be as good as any other witness. Unless, therefore, there may be some reason, and for which there may be some evidence as well, that he might have some reason to foist a false case against the delinquent, there would be no occasion to disbelieve his statement. In the present case, the applicant would not even suggest that the two Inspectors when they appeared in the witness box had deposed falsely, or that they had recorded false statement of the driver, or that the driver had made no statement, and yet they recorded that the applicant had demanded and accepted money from him. We are of the considered view that even the statement of a hostile witness can be believed to an extent, and, therefore, we may accept the statement of the driver to the extent that he had admitted the event, but we may reject the same insofar as, it exculpates the applicant and others. There is sufficient corroborative evidence on records to indicate that the applicant had demanded money and the driver had paid the same. The statement of the driver was recorded at the spot, and the report in that regard was submitted to the authorities by the PRG team on the next day.
13. Following the reasons given by the Honble High Court in Const. Arvind Kumar (supra), and for the additional reasons that we have given in the present order, we find no merit in this Original Application and dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/